Evans v. State

757 S.W.2d 759, 1988 Tex. Crim. App. LEXIS 153, 1988 WL 74077

• Court: Court of Criminal Appeals of Texas
• Decided: July 20, 1988
• Docket: 981-87
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

This is an appeal from a conviction for aggravated robbery.

The Court of Appeals overruled points of error challenging the constitutionally of Article 37.07, § 4(a), V.A.C.C.P., but sustained a point of error complaining of a “have your heard” question the prosecutor put to a reputation witness for appellant, and reversed the judgment of conviction. Evans v. State, 732 S.W.2d 703 (Tex.App.—Fort Worth 1987).

Thereafter, appellant filed a motion for bail in this Court pursuant to Article 44.-04(h), V.A.C.C.P.

We have granted the petition for discretionary review and summarily will vacate the judgment of the Fort Worth Court of Appeals and remand the cause to that court. Tex.R.App.Pro. Rule 202(k).

Walker v. State, 610 S.W.2d 481 (Tex.Cr.App.1980), upon which the Fort Worth Court of Appeals primarily relied, does preclude the State from eliciting facts surrounding commission of an offense forming the basis of a conviction that is part of the prior criminal record of an accused. Id., at 483. However, we are of the opinion that such rule does not govern “have you heard” questions posed on cross examination to a reputation witness. In that situation the Court has held that “the State is permitted to ask such witnesses if they have heard of a specific act of misconduct inconsistent with the reputation to which they testified,” pointing out that “[pjroof of the ‘prior criminal record’ of an accused and the proper cross-examination of a reputation witness are not to be confused.” Hines v. State, 515 S.W.2d 670, at 675, 676 (Tex.Cr.App.1974). See generally Ward v. State, 591 S.W.2d 810 (Tex.Cr.App.1978, 1979).

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Accordingly, we do not approve the rationale by which the Fort Worth Court of Appeals sustained the first point of error.

On the other hand, the Court of Appeals overruled points of error two through five attacking constitutionality of the instruction on parole law given in accordance with Article 37.07, § 4(a), supra. Since then this Court has decided the statute is unconstitutional. Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1987) (Opinion on Rehearing).

Therefore, the Court of Appeals should reexamine those points of error in light of Rose v. State, supra. Remanding the cause for that purpose makes appellant’s motion for bail moot; it is dismissed.

The judgment of the Fort Worth Court of Appeals is set aside and vacated, and the cause is remanded to that court for further proceedings not inconsistent with this opinion.

Trial of the instant case occurred in January 1986. Since then rules pertaining to proof of character by reputation have changed somewhat. See Tex.R.Cr.Evid. Rules 404(c) and 405(a).